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[2025] ACTSC 113
Supreme Court of the ACT
2025-03-21
McWilliam J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn
Citation: [2025] ACTSC 113
Hearing Dates: 7 and 21 March 2025
Decision Date: 21 March 2025
Reasons Date: 25 March 2025
Before: McWilliam J
Decision: Leave granted to disclose protected confidences.
Catchwords: CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Leave to disclose protected confidences nunc pro tunc – Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether legitimate forensic purpose – whether public interest in ensuring fair hearing outweighs public interest in preserving confidentiality of protected confidence – leave granted STATUTORY INTERPRETATION – WORDS AND PHRASES – meaning of “proceeding” – where chapter appears to apply only to sexual, violent and family violence offence proceedings but definition applying within division dealing with disclosure of protected confidences refers to both civil and criminal proceedings Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) Part 5.3, ss 61, 64 Court Procedures Act 2004 (ACT) s 5A Criminal Procedure Act 1986 (NSW) Chapter 6, Part 5.2, ss 297, 298 Evidence (Miscellaneous Provisions) Act 1991 (ACT) Chapter 4, Pts. 4.1, 4.2, 4.3, 4.4, ss 79A(1), 79D, 79E, 79F, 79G, 79H, 79J Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32E(1) Evidence Act 1906 (WA) ss 19A-M Evidence Act 1939 (NT) Part 7, s 56A(2) Evidence Act 1995 (NSW) 126B, 126C Evidence Act 2011 (ACT) s 126C Legislation Act 2001 (ACT) s 126(1)
Cases Cited: BJT v Australian Capital Territory [2025] ACTSC 69 R v Chute (No 5) [2019] ACTSC 52 R v WR (No 2) [2009] ACTSC 110 Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210
Parties: Laura Hall (a pseudonym) (Plaintiff) Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn (Defendant) Representation: Counsel J Ronald (Plaintiff) S Sarkis (Defendant)
Solicitors Chamberlains (Plaintiff) Wotton Kearney (Defendant) File Number: SC 148 of 2024 McWilliam J:
Interlocutory application
79D General immunity for protected confidences (1) This section applies in relation to a proceeding. (2) A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure. (3) Without limiting subsection (2)–– (a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and (b) protected confidence evidence is not admissible in the proceeding, unless the court gives leave. Example––par (a) A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.
The defendant’s application thus seeks leave to disclose “protected confidences” pursuant to the procedure prescribed in Division 4.4.3 of the EMP Act.
Although brought by the defendant, the application was effectively jointly made by the plaintiff, as it is the plaintiff who is required to disclose the material to the defendant. The plaintiff consents to the application and the disclosure of the records.
Legislative framework – is an application to disclose protected confidences required in civil proceedings?
“Protected confidences” are counselling communications made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed: s 79A(1) of the EMP Act.
The development of the statutory regime providing a qualified public interest immunity against disclosure of confidential counselling communications was referred to in Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210 (Stanley) at [1].
Although the material contained in the plaintiff’s medical records includes communications that would fall with the definition of protected confidences, it is not immediately obvious that the legislation applies to a civil proceeding brought by the plaintiff, particularly where she is the person whose communications are the subject of the immunity and she consents to the disclosure.
The regime dealing with protected confidences is located in Chapter 4 of the EMP Act, which bears the heading “Sexual, violent and family violence offence proceedings”. Offence proceedings are not civil proceedings. Headings form part of the EMP Act: s 126(1) of the Legislation Act 2001 (ACT) (Legislation Act).
Part 4.1 of the EMP Act then defines a “proceeding” to include a variety of types of proceedings, including among those a trial, hearing and interlocutory proceeding: s 37 of the EMP Act. While it does not distinguish between civil and criminal proceedings, the fact that it is located under a heading that only deals with sexual, violent and family violence offence proceedings again suggests that this definition of proceeding for the Part only relates to those specified criminal proceedings.
The remainder of Part 4.1 deals with definitions for the various kinds of proceedings, all of which are criminal proceedings.
Parts 4.2 and 4.3 of the EMP Act deal with special requirements for particular proceedings and how evidence may be given, again all directed to criminal proceedings.
Part 4.4 (in which the protected confidences immunity is located) bears the heading “Special requirements – sexual offence and family violence offence proceedings”. Division 4.4.3 similarly refers to “Sexual and family violence offence proceedings – protection of counselling communications”. Again, headings to parts and divisions of the statute are also part of the EMP Act: s 126(1) of the Legislation Act.
The impression given by the EMP Act is that those parts of the statute deal only with offence proceedings of the kind specified. However, within s 79 of the EMP Act, which sets out the definitions applying to Division 4.4.3, “proceeding” is defined as a civil or criminal proceeding. Section 79D(1) then provides:
(1) This section applies in relation to a proceeding.
Thus, notwithstanding that the surrounding context to s 79D of the EMP Act is all directed to criminal proceedings, the present civil proceeding is subject to the requirements contained within the section.
In other jurisdictions, civil proceedings of this nature have been carved out of the operation of statutory regimes protecting confidential communications. See, for example, s 56A(2) of the Evidence Act 1939 (NT), where the protection applies to specified criminal proceedings. Similarly, in New South Wales, the protection is limited to preliminary criminal proceedings and criminal proceedings: ss 297 and 298 of the Criminal Procedure Act 1986 (NSW). There is provision for protected confidences to be excluded at the admissibility stage in proceedings (whether they be civil or criminal) under s 126B of the Evidence Act 1995 (NSW) (EA (NSW)). However, again, that section does not apply if the “protected confider” consents to the evidence being adduced: s 126C of the EA (NSW).
In Victoria, civil proceedings are included within the protective regime, but the division dealing with confidential communications and protected health information is expressly excluded from operation where the consent of the protected person has been obtained: s 32E(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
Not so in the Territory. Section 79J of the EMP Act (also located in div. 4.4.3) provides:
79J No waiver of protected confidence immunity This division applies whether or not a person who has made a protected confidence consents or does not object to the disclosure of the protected confidence.
Insofar as the above legislative regime applies to civil proceedings of the kind presently before the court, it appears to be in direct contradiction of the statutory obligations contained in the pre-trial procedures prescribed by Part 5.3 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act). Before any civil proceedings seeking damages for personal injury may be commenced, upon request, the plaintiff is required to provide her medical and treatment records. These records include her psychological counselling and other treatment records: s 64 of the CLW Act.
Such requirements are with a view to reducing the litigation before the courts. Under s 61 of the CLW Act, the respondent must attempt to resolve the claim. In order to do that, it must be able to put itself in a position to assess the claim.
As the plaintiff’s counsel in the present case submitted, as soon as personal injury litigation commences, the parties must approach the court for leave under the EMP Act to disclose the very information that could have been requested and provided as part of the pre-trial disclosures required by the CLW Act.
The inability for a plaintiff in such a position to consent to disclosure with a view to avoiding the legal costs necessarily incurred by an application such as the present would also appear to be contrary to the civil procedure provisions encouraging the resolution of disputes as quickly, inexpensively and efficiently as possible: s 5A of the Court Procedures Act 2004 (ACT) (CPA).
The position is even more confusing for civil proceedings at the admissibility stage during a hearing, as s 79D(3)(b) requires an application for leave with the inability to waive the protected confidence immunity, yet s 126C of the Evidence Act 2011 (ACT) provides that the same type of evidence may be presented with the protected confider’s consent.
While there are plainly sound policy objectives behind a statutory regime protecting confidential communications, it is difficult to see how the requirement for a plaintiff who consents to disclosure of her own records in civil proceedings to nevertheless be put through the formalities and expense of a court-supervised process furthers those objectives. It need hardly be said that such a requirement does not further the efficient use of the judicial and administrative resources available (s 5A(2)(b) of the CPA).
Recently in BJT v Australian Capital Territory [2025] ACTSC 69 (BJT), Mossop J observed at [13]:
I observe, finally, that a review of the provisions relating to the disclosure of protected confidences may be appropriate in light of the operation of those provisions since their enactment. It seems eminently possible in civil cases, where a party consents, not to have a legislative regime which imposes upon them and the court the rigid process currently required under the Act. Those processes do not seem to accommodate the circumstance where the party who would be affected by the disclosure accepts, for the purpose of the proceedings, that the disclosure of the records is necessary and consents to their disclosure.
I respectfully agree with his Honour’s observations. What does s 79D require?
The substantive requirement is found in s 79D(2) of the EMP Act, namely that protected confidences “must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure.” This includes the initial disclosure to the court: R v WR (No 2) [2009] ACTSC 110 (WR (No 2)) at [30], dealing with an earlier version of the legislation.
Section 79D(3)(a) provides:
A person cannot be required (whether by subpoena, application, notice or any other procedure) in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave.
Section 79D(3)(b) provides that protected confidence evidence is not admissible in the proceeding without leave. However, the parties are not yet at that stage of the proceeding.
As to the formal procedural requirements, a written application setting out the leave sought is required: s 79E(1) of the EMP Act. Here, an application seeking leave was filed on 14 February 2025.
In the present case, the material containing the records of protected confidences has been obtained with a view to providing discovery, without an application for leave first being made. Subsequent to the filing of the application, further documents were produced, and these too were expected to contain protected confidences. An amended application was thus required to capture the totality of the material. It was filed on 13 March 2025, seeking leave (including retrospectively) to compel production as well as to disclose the material in the proceeding.
There are also notification requirements set out in s 79E. In this case, the counselled person is the plaintiff in the proceeding and she has been served with notice of the application: s 79E(3) of the EMP Act.
The Court must not determine the application until at least 14 days after the applicant has given notice: s 79F(3) of the EMP Act. Given the procedural history in the present matter, this statutory requirement has been met.
The Court’s task
The procedure and approach to be taken by the court has been set out in judgments such as Stanley at [13]-[25] and R v Chute (No 5) [2019] ACTSC 52 (Chute) at [3]-[4].
As Refshauge J observed in WR (No 2) at [26], the regime is similar to regimes in other jurisdictions, such as Chapter 6, Part 5.2 of the Criminal Procedure Act 1986 (NSW), ss 19A-M of the Evidence Act 1906 (WA) and Part 7 (as it now is) of the Evidence Act 1939 (NT).
Sections 79F(1), 79G and 79H of the EMP Act provide for two stages to be carried out before access or disclosure of any documents is permitted. Relevantly to the civil circumstances here, the first is to assess whether the documents can even be obtained from the person who may be in possession of a protected confidence (for example, by subpoena or pursuant to discovery obligations). The second is to then work out whether the protected confidence may be disclosed in the proceeding; that is, whether the parties may have access to the documents produced. Each of these stages are addressed in turn. Section 79F(1) of the EMP Act – the requirements for a legitimate forensic purpose and arguable case
Section 79F(1) requires the court’s satisfaction that the applicant has established a legitimate forensic purpose for seeking the leave. The purpose must be identified, and “the applicant must satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding”: s 79F(2).
If the court is not so satisfied, the application “must be refused”: s 79F(1). The court must decide that threshold question before it conducts a preliminary examination of the protected confidence evidence, being the next step in the statutory procedure.
As to what constitutes a “legitimate forensic purpose”, the assessment at the stage before a subpoena is issued will be assessed by reference to the issues in the proceedings and the likely nature of the documents sought: Stanley at [19].
As to what constitutes an “arguable case”, that question should be determined on the basis of “a reasonable possibility in light of the known facts”: Stanley at [20], citing Chute at [19].
For the second limb of that question, being whether the documents “would materially assist the applicant’s case”, the court’s approach is similar to assessing apparent relevance at common law with respect to subpoenas, as discussed by McCallum CJ in Stanley at [21]-[22].
The preliminary examination under s 79G and the grant of leave under s 79H
Once the court is satisfied that the threshold in s 79F is met (the consequence being that the subpoena may issue or the documents may otherwise be produced), the court is required to conduct a preliminary examination “to decide whether leave should be given”: s 79G(1) of the EMP Act.
This stage was discussed by Mossop J in Chute at [22]:
Section 79G requires the court to conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. For that purpose s 79G(2) has two alternatives, the first is to require anyone who has custody or control of the document recording a protected confidence to produce the document to the court for inspection. The second is to require the counsellor or the principal or other representative of the entity on behalf of whom the counselling was provided to give the court written answers to questions or attend the court for oral examination. …
Section 79G(8) of the EMP Act requires that the court must make a record of the preliminary examination, but that record must not be made available for public access. In BJT at [10], Mossop J observed that the legislation does not make clear what the reference to “public” in “public access” means.
The legislation is also a little opaque as to the “record” contemplated. It does not make clear whether it is only the fact that the court has undertaken the preliminary examination that must be recorded, or whether the reference to a “record of the preliminary examination” is really directed to clarifying that where any oral examination occurs, a transcript must be taken, but that any such transcript is not to be made available to the public.
The uncertainty in the present case arises from the documents under consideration having been provided to the court to undertake the preliminary examination by inspecting them in chambers (to comply with the requirements of s 79G(6) that the examination occur in the absence of the public and the parties). In such circumstances, the only record will be of the kind made by Mossop J in BJT where his Honour stated at [10]:
So far as the preliminary examination required under s 79G is concerned, I have undertaken that exercise.
However, the “record of the preliminary examination” having been conducted is itself contained in a public judgment. There is no other record of what occurred in chambers. It is one of the matters where revisiting the legislation in light of the experience of the profession and the courts in practice could achieve some clarity as to what is contemplated by s 79G(8) of the EMP Act.
The question of leave after conducting the preliminary examination (s 79H(1) of the EMP Act) is a more stringent test than that applicable under s 79F: Stanley at [23]. Relevant to the present civil proceeding, McCallum CJ went on in Stanley at explain at [24]:
The question of leave to disclose a protected confidence at that second stage is governed by s 79H which imposes a minimum hurdle (for a civil proceeding, the Court must be satisfied that “the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence”) and a list of mandatory considerations in making that decision.
The mandatory considerations are contained in s 79H(3) as follows:
(3) In making a decision under subsection (1), the court must have regard to— (a) for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and (b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and (c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and (d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and (e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and (f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and (g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and (h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.
Those mandatory considerations do not limit other matters that the court may consider: s 79H(4) of the EMP Act. Is there a legitimate forensic purpose for seeking leave here?
The plaintiff is claiming damages for personal injury arising out of the very conduct that is the subject of the protected confidences. The statement of claim articulates an arguable case (that is, it cannot be said that the whole proceeding is vexatious such that the defendant has no case to answer).
Both liability and quantum are presently denied.
The forensic purpose identified by the defendant was that the material will enable the defendant to test the veracity of the allegations which are the subject of the proceedings and will also assist the defendant to assess the potential quantum of the claim.
I accept that on the pleadings, there is a reasonable possibility that the protected confidences sought to be obtained via discovery will assist in that way. I am therefore satisfied there is a legitimate forensic purpose in compelling production of the material and will grant leave for that purpose. As the documents have already been requested and obtained, the order must be made nunc pro tunc (now, as if then): Stanley at [2].
Does the public interest in ensuring the proceeding is conducted fairly outweigh the public interest in preserving the confidentiality of the protected confidence?
I am also satisfied that, having had regard to the considerations set out above in s 79H, the material is necessary for a fair hearing to be conducted and outweighs the public interest in preserving the confidentiality of the protected confidence.
As reasoned by McCallum CJ in Stanley at [29], the interest in ensuring that victims receive effective treatment, and the prospect that future disclosure of protected confidences may dissuade victims from seeking counselling in the first place or diminish the value of it, are matters of less weight in cases where the plaintiff has subsequently brought a civil action and what is in issue is the cause of the plaintiff’s injuries and disabilities.
Having examined the material produced, it will have substantial probative value to the facts in issue, including whether the conduct occurred as alleged and the nature and extent of the injuries, so as to affect the quantum. It is readily apparent that the material will likely affect the outcome of the case on liability as well as on quantum.
As indicated at the outset, the plaintiff has consented to the material being discovered and disclosed to the defendant, presumably in recognition of fairness considerations involved in the defendant investigating and answering the allegations at issue. There are no matters that lessen the expectation of confidentiality of the material.
There are also no other matters which I consider to have any bearing upon the exercise of the court’s discretion under s 79H here. I will therefore grant leave to disclose the protected confidences.
Conclusion
For the above reasons, leave will be granted for the disclosure of the protected confidences contained in the material produced under the subpoenas.
The Orders of the Court (pronounced on 21 March 2025) are as follows: 1. Pursuant to s 79D(3)(a) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is granted nunc pro tunc to compel production of the documents containing protected confidences listed in proposed order 1 of the amended application in proceeding filed 13 March 2025 (the discovered material).
Pursuant to s 79D(2) and 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), leave is granted to the defendant to inspect the discovered material after 7 days from the date of this order and to rely upon the discovered material for the purposes of the proceeding, subject to any contrary ruling on admissibility by the trial judge.
The costs of the application are to be the costs in the proceeding.
I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate:
Date: 25 March 2025
Hall (a pseudonym)
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113